TEXAS ETHICS COMMISSION

ETHICS ADVISORY OPINION NO. 80

November 5, 1992

Acceptance of reimbursement for airline tickets by a state representative. (AOR-38)

The Texas Ethics Commission has been asked to consider whether a member of the House of
Representatives may accept payments in the amount of the cost of certain airline tickets
and, if so, how the payments are to be reported. The state representative in question
first flew from his home city to another Texas city to meet with an officer of a state
agency in regard to a matter relevant to economic development in the legislator's
district. The state representative used political contributions to pay for that ticket. See
Elec. Code § 251.001(5) (defining
"political contribution"). The state representative then flew from that city to
Austin to attend to legislative matters. The state representative used his own money to
pay for that ticket. A private entity has offered to pay to the state representative an
amount equal to the cost of the tickets for those trips. The private entity has an
interest in the matter that occasioned the first leg of the trip. Because the state
representative used political contributions to pay for one of the flights in question and
personal funds to pay for the other, each flight raises different questions. Therefore, we
will consider each flight separately.

The state representative paid for the first flight out of political contributions. The
purpose of the trip, as described, was to discuss with a state agency a matter of concern
to constituents. Such a trip would be an activity in connection with the office of a state
representative. Therefore, it was permissible to use political contributions to pay for
the trip. See Elec. Code § 253.035
(prohibiting conversion of political contributions to personal use). Because the state
representative paid for the ticket with political contributions, not personal funds, a
payment to the state representative personally in the amount of the ticket for that
flight would be a prohibited cash gift. Penal Code § 36.08(f);
Gov't Code § 305.024(a)(2).1 The state representative could, however, accept a
payment in the amount of the ticket as an "officeholder contribution" or, if the
state representative has a campaign treasurer appointment in effect, as a campaign
contribution.2 An "officeholder
contribution" is a contribution to an officeholder offered or given with the intent
that it be used to defray expenses that "are incurred by the officeholder in
performing a duty or engaging in an activity in connection with the office" and
"are not reimbursable with public money."3
Elec. Code § 251.001(4)(A), (B). A
"campaign contribution" is a contribution given "with the intent that it be
used in connection with an election." Id. § 251.001(3). An officeholder may accept a campaign
contribution only if he has a campaign treasurer appointment in effect. Id. §
253.031(a).

The request letter does not state whether the entity offering the payment is a
corporation. In most cases, a corporation may not make and the legislator may not accept a
campaign or officeholder contribution. See Elec. Code §§ 253.094 (prohibition on corporate contributions),
253.003(b) (providing that a person may not knowingly accept a political contribution the
person knows to have been made in violation of chapter 253 of the Election Code); see
also id. §§ 253.091, 253.092, 253.093.
The request letter does not state whether the private entity offering the payment is a
corporation. See Attorney General Opinion MW-178 (1980) (professional associations
and professional corporations are not prohibited from making campaign contributions).

If the state representative accepts a payment as an officeholder contribution or a
campaign contribution, he must report it in accordance with title
15 of the Election Code. In the situation described, the state representative would
report the purchase of the ticket as a political expenditure and include the amount of the
purchase, the full name and address of the person towhom the payment is made, and the date
and purpose of the payment.4Id. §
254.031(a)(3). The state representative would
report the payment from the private entity as a political contribution and include the
amount and date of the contribution and the name and address of the contributor. Id.
§ 254.031(a)(1).

For the flight to Austin, the state representative used personal funds to purchase the
ticket. Thus repayment to the state representative personally would mean, in effect, that
the private entity was paying for the transportation. Such payment would be a prohibited
benefit. Penal Code § 36.08(f).5 Again, however, the state representative could accept an
officeholder contribution or a campaign contribution in the amount of the cost of the
ticket, if he has a campaign treasurer appointment in effect. If the state representative
accepts the payment as an officeholder contribution or a campaign contribution, the
payment must be reported as described above.

Because the state representative paid for the ticket out of personal funds, a question
arises about personal reimbursement from political funds. As discussed above, the purchase
of the ticket would qualify as an officeholder expenditure if the ticket is not
reimbursable with public funds. In that case, the state representative could accept
personal reimbursement from his political funds if the expenditure was properly reported.
If the expenditure for the ticket was reported as a political expenditure from personal
funds subject to reimbursement, the state representative may reimburse himself from his
political funds for the cost of the ticket. Elec. Code §§ 253.035(h), 253.042
(limitations on such reimbursements); see also id. § 251.001(9)(A), (B) (defining "officeholder
expenditure"). If the state representative did not report the expenditure for the
ticket in accordance with section 253.035(h),
the state representative may not reimburse himself from political funds.

SUMMARY

Payment to a state representative personally in the amount of a ticket paid for out of
political funds would, in the circumstances described, be prohibited. Payment to a state
representative personally in the amount of the cost of a ticket paid for out of personal
funds would be a prohibited benefit.

As long as a payment is not given as consideration for the state representative's
decision, opinion, recommendation, vote, or other exercise of discretion as a public
servant, the state representative may accept an officeholder contribution or a campaign
contribution in the amount of the cost of the ticket.

1It is important to note here that the facts, as
described, indicate that the private entity's payment to the legislator would not be a
lobby expenditure on the part of the private entity. Apparently, the private entity wants
the state representative to influence the state agency. There is no indication that the
private entity is making the expenditure to communicate with the state representative to
influence legislation. If that is the private entity's purpose, however, the private
entity could pay for the state representative's transportation only if the trip can be
characterized as a "fact-finding trip." See Gov't Code § § 305.024(a)(3),
305.025(a)(3).

2If the payment were made as consideration
for the state representative's opinion, recommendation, or other exercise of discretion as
a public servant, the payment would be a prohibited bribe.

5The request letter does not indicate that any member of the
organization accompanied the state representative on the trip. Therefore, we need not
consider whether the "guest" exception in section 36.10(b) of the Penal Code would apply. SeeEthics Advisory Opinions Nos. 77, 12 (1992)
(discussing "guest" exception to prohibition on acceptance of benefit).